EEOC Provides Updated Guidance on Religious Objections to Vaccine Mandates

Client Alert

The EEOC’s expanded technical assistance now addresses employers’ obligations to respond to and navigate vaccine-related religious accommodation requests pursuant to Title VII of the federal Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. The October 25, 2021 updated guidance may be found here.

Under Title VII, an employee or applicant who does not get vaccinated due to a sincerely held religious belief, practice or observance may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.

Employers have questioned how broadly this exception applies in the context of vaccination mandates, and what constitutes a “sincerely held religious belief.” Importantly, the EEOC guidance clarifies that social, political, personal preference or nonreligious concerns about the possible effects of the vaccine do not qualify as “religious beliefs.”

A summary of key guidance updates is set forth below:

  • No “magic words” are required to trigger religious accommodation. The definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, and employers should ordinarily assume that a request for religious accommodation is based on a sincerely held belief, practice or observance. Employees need not use any “magic words,” e.g., “religious accommodation” or “Title VII,” to request such an accommodation. Employers should provide employees and applicants with information about whom to contact and the procedures to use to make the request.
  • Employers may question the sincerity of religious beliefs based on objective criteria. If an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.
  • Multiple factors may be considered in evaluating the sincerity of beliefs. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Factors that could undermine an employee’s credibility include the following:
     
    • The employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance and employers should recognize that an individual’s beliefs may change over time).
    • The accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons.
    • The timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons).
    • The employer otherwise has reason to believe the accommodation is not sought for religious reasons.
  • Examples of potential accommodations. Some examples of reasonable accommodations for an unvaccinated employee entering the workplace may be that the employee wear a face mask, work at a social distance from coworkers or nonemployees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment. If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship, the employer may choose which accommodation to offer. The employer should consider the employee’s preference but is not obligated to provide the preferred accommodation.
  • Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. Considerations relevant to undue hardship include, but are not limited to, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with nonemployees whose vaccination status could be unknown or who may be ineligible for the vaccine. If an employee cannot be accommodated, employers should determine whether any other rights apply under the EEO laws or other federal, state and local authorities before taking adverse employment action against an unvaccinated employee.

Employers that have specific accommodation questions should consult with employment counsel for guidance.

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